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Shown Here:Placed on Calendar Senate (04/02/2014)

To amend the Fair Labor Standards Act of 1938 to provide
more effective remedies to victims of discrimination in the payment of wages on
the basis of sex, and for other purposes.

IN THE SENATE OF THE UNITED STATES

April 1, 2014

Ms. Mikulski introduced the following bill; which was read the first time

April 2, 2014

Read the second time and placed on the calendar

A BILL

To amend the Fair Labor Standards Act of 1938 to provide
more effective remedies to victims of discrimination in the payment of wages on
the basis of sex, and for other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1.Short title.

This Act may be cited as the
“Paycheck Fairness
Act”.

SEC. 2. Findings.

Congress finds the following:

(1) Women have entered
the workforce in record numbers over the past 50 years.

(2) Despite the
enactment of the Equal Pay Act in 1963, many women continue to earn
significantly lower pay than men for equal work. These pay disparities
exist in
both the private and governmental sectors. In many instances, the pay
disparities can only be due to continued intentional discrimination or the
lingering effects of past discrimination.

(3) The existence of
such pay disparities—

(A) depresses the
wages of working families who rely on the wages of all members of the
family to
make ends meet;

(B) undermines women's
retirement security, which is often based on earnings while in the
workforce;

(C) prevents the
optimum utilization of available labor resources;

(D) has been spread
and perpetuated, through commerce and the channels and instrumentalities
of
commerce, among the workers of the several States;

(E) burdens commerce
and the free flow of goods in commerce;

(F) constitutes an
unfair method of competition in commerce;

(G) leads to labor
disputes burdening and obstructing commerce and the free flow of goods in
commerce;

(H) interferes with
the orderly and fair marketing of goods in commerce; and

(I) in many instances,
may deprive workers of equal protection on the basis of sex in violation
of the
5th and 14th Amendments.

(4)(A) Artificial barriers to
the elimination of discrimination in the payment of wages on the basis of
sex
continue to exist decades after the enactment of the Fair Labor Standards
Act
of 1938 (29 U.S.C. 201 et seq.) and the Civil
Rights Act of 1964 (42 U.S.C. 2000a et seq.).

(B) These barriers have resulted, in
significant part, because the Equal Pay Act has not worked as Congress
originally intended. Improvements and modifications to the law are
necessary to
ensure that the Act provides effective protection to those subject to pay
discrimination on the basis of their sex.

(C) Elimination of such barriers would
have positive effects, including—

(i) providing a solution to problems in
the economy created by unfair pay disparities;

(ii) substantially reducing the number
of working women earning unfairly low wages, thereby reducing the
dependence on
public assistance;

(iii) promoting stable families by
enabling all family members to earn a fair rate of pay;

(iv) remedying the effects of past
discrimination on the basis of sex and ensuring that in the future workers
are
afforded equal protection on the basis of sex; and

(v) ensuring equal protection pursuant
to Congress’ power to enforce the 5th and 14th Amendments.

(5) The Department of Labor and the Equal
Employment Opportunity Commission have important and unique
responsibilities to
help ensure that women receive equal pay for equal work.

(6) The Department of Labor is responsible
for—

(A) collecting and making publicly available
information about women’s pay;

(D) helping women who have been victims of pay
discrimination obtain a remedy; and

(E) being proactive in
investigating and prosecuting equal pay violations, especially systemic
violations, and in enforcing all of its mandates.

(7) The Equal Employment Opportunity Commission
is the primary enforcement agency for claims made under the Equal Pay Act,
and
issues regulations and guidance on appropriate interpretations of the
law.

(8) With a stronger
commitment by the Department of Labor and the Equal Employment Opportunity
Commission to their responsibilities, increased information as a result of
the
amendments made by this Act to the Equal Pay Act of 1963, wage data, and
more
effective remedies, women will be better able to recognize and enforce
their
rights.

(9) Certain employers
have already made great strides in eradicating unfair pay disparities in
the
workplace and their achievements should be recognized.

(2) by striking
“any other factor other than sex” and inserting “a bona fide
factor other than sex, such as education, training, or experience”;
and

(3) by inserting at
the end the following:

“(B) The bona fide factor defense described in
subparagraph (A)(iv) shall apply only if the employer demonstrates
that such
factor (i) is not based upon or derived from a sex-based
differential in
compensation; (ii) is job-related with respect to the position in
question; and
(iii) is consistent with business necessity. Such defense shall not
apply where
the employee demonstrates that an alternative employment practice
exists that
would serve the same business purpose without producing such
differential and
that the employer has refused to adopt such alternative practice.

“(C) For purposes of subparagraph (A), employees
shall be deemed to work in the same establishment if the employees
work for the
same employer at workplaces located in the same county or similar
political
subdivision of a State. The preceding sentence shall not be
construed as
limiting broader applications of the term ‘establishment’ consistent
with rules prescribed or guidance issued by the Equal Opportunity
Employment
Commission.”.

(1) in subsection
(a)(3), by striking “employee has filed” and all that follows and
inserting “employee—

“(A) has made a charge or filed any complaint or
instituted or caused to be instituted any investigation,
proceeding, hearing,
or action under or related to this Act, including an investigation
conducted by
the employer, or has testified or is planning to testify or has
assisted or
participated in any manner in any such investigation, proceeding,
hearing or
action, or has served or is planning to serve on an industry
Committee;
or

“(B) has inquired about, discussed, or disclosed
the wages of the employee or another
employee.”;
and

(2) by adding at the
end the following:

“(c) Subsection (a)(3)(B) shall not apply to
instances in which an employee who has access to the wage
information of other
employees as a part of such employee’s essential job functions
discloses the
wages of such other employees to individuals who do not otherwise
have access
to such information, unless such disclosure is in response to a
complaint or
charge or in furtherance of an investigation, proceeding, hearing,
or action
under section 6(d), including an investigation conducted by the
employer.
Nothing in this subsection shall be construed to limit the rights
of an
employee provided under any other provision of
law.”.

(1) by inserting after
the first sentence the following: “Any employer who violates section 6(d)
shall additionally be liable for such compensatory damages, or, where the
employee demonstrates that the employer acted with malice or reckless
indifference, punitive damages as may be appropriate, except that the
United
States shall not be liable for punitive damages.”;

(2) in the sentence
beginning “An action to”, by striking “either of the
preceding sentences” and inserting “any of the preceding sentences
of this subsection”;

(4) by inserting after
the sentence referred to in paragraph (3), the following:
“Notwithstanding any other provision of Federal law, any action brought
to enforce section 6(d) may be maintained as a class action as provided by
the
Federal Rules of Civil Procedure.”; and

(5) in the sentence
beginning “The court in”—

(A) by striking
“in such action” and inserting “in any action brought to
recover the liability prescribed in any of the preceding sentences of this
subsection”; and

(B) by inserting
before the period the following: “, including expert fees”.

(A) by inserting
“or, in the case of a violation of section 6(d), additional compensatory
or punitive damages, as described in subsection (b),” before “and
the agreement”; and

(B) by inserting
before the period the following: “, or such compensatory or punitive
damages, as appropriate”;

(2) in the second
sentence, by inserting before the period the following: “and, in the case
of a violation of section 6(d), additional compensatory or punitive
damages, as
described in subsection (b)”;

(3) in the third
sentence, by striking “the first sentence” and inserting
“the first or second sentence”; and

(4) in the last
sentence—

(A) by striking
“commenced in the case” and
inserting “commenced—

“(1) in the
case”;

(B) by striking the
period and inserting “; or”; and

(C) by adding at the
end the following:

“(2) in the case of a
class action brought to enforce section 6(d), on the date on which
the
individual becomes a party plaintiff to the class
action.”.

SEC. 4. Training.

The Equal Employment Opportunity Commission
and the Office of Federal Contract Compliance Programs, subject to the
availability of funds appropriated under section 10, shall provide
training to
Commission employees and affected individuals and entities on matters
involving
discrimination in the payment of wages.

SEC. 5. Negotiation
skills training for girls and women.

(a) Program
authorized.—

(1) IN
GENERAL.—The Secretary of Labor, after consultation with the
Secretary of Education, is authorized to establish and carry out a grant
program.

(2) GRANTS.—In
carrying out the program, the Secretary of Labor may make grants on a
competitive basis to eligible entities, to carry out negotiation skills
training programs for girls and women.

(3) ELIGIBLE
ENTITIES.—To be eligible to receive a grant under this subsection,
an entity shall be a public agency, such as a State, a local government in
a
metropolitan statistical area (as defined by the Office of Management and
Budget), a State educational agency, or a local educational agency, a
private
nonprofit organization, or a community-based organization.

(4) APPLICATION.—To
be eligible to receive a grant under this subsection, an entity shall
submit an
application to the Secretary of Labor at such time, in such manner, and
containing such information as the Secretary of Labor may require.

(5) USE OF
FUNDS.—An entity that receives
a grant under this subsection shall use the funds made available through
the
grant to carry out an effective negotiation skills training program that
empowers girls and women. The training provided through the program shall
help
girls and women strengthen their negotiation skills to allow the girls and
women to obtain higher salaries and rates of compensation that are equal
to
those paid to similarly situated male employees.

(b) Incorporating
training into existing programs.—The Secretary of Labor and the
Secretary of Education shall issue regulations or policy guidance that
provides
for integrating the negotiation skills training, to the extent
practicable,
into programs authorized under—

(1) in the case of the
Secretary of Education, the Elementary and Secondary Education Act of 1965
(20
U.S.C. 6301 et seq.), the Carl D. Perkins Vocational and Technical
Education
Act of 1998 (20 U.S.C. 2301 et seq.), the Higher Education Act of 1965 (20
U.S.C. 1001 et seq.), and other programs carried out by the Department of
Education that the Secretary of Education determines to be appropriate;
and

(2) in the case of the
Secretary of Labor, the Workforce Investment Act of 1998 (29 U.S.C. 2801
et
seq.), and other programs carried out by the Department of Labor that the
Secretary of Labor determines to be appropriate.

(c) Report.—Not later than 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary of Labor and
the
Secretary of Education shall prepare and submit to Congress a report
describing
the activities conducted under this section and evaluating the
effectiveness of
such activities in achieving the purposes of this Act.

SEC. 6. Research,
education, and outreach.

The
Secretary of Labor shall conduct studies and provide information to
employers,
labor organizations, and the general public concerning the means available
to
eliminate pay disparities between men and women, including—

(1) conducting and
promoting research to develop the means to correct expeditiously the
conditions
leading to the pay disparities;

(2) publishing and
otherwise making available to employers, labor organizations, professional
associations, educational institutions, the media, and the general public
the
findings resulting from studies and other materials, relating to
eliminating
the pay disparities;

(3) sponsoring and
assisting State and community informational and educational programs;

(4) providing
information to employers, labor organizations, professional associations,
and
other interested persons on the means of eliminating the pay
disparities;

(5) recognizing and
promoting the achievements of employers, labor organizations, and
professional
associations that have worked to eliminate the pay disparities; and

(6) convening a
national summit to discuss, and consider approaches for rectifying, the
pay
disparities.

SEC. 7. Establishment of
the National Award for Pay Equity in the Workplace.

(a) In
general.—There is established
the Secretary of Labor’s National Award for Pay Equity in the Workplace,
which
shall be awarded, as appropriate, to encourage proactive efforts to comply
with
section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)).

(b) Criteria for
qualification.—The Secretary
of Labor shall set criteria for receipt of the award, including a
requirement
that an employer has made substantial effort to eliminate pay disparities
between men and women, and deserves special recognition as a consequence
of
such effort. The Secretary shall establish procedures for the application
and
presentation of the award.

(c) Business.—In
this section, the term “employer” includes—

(1)(A) a corporation, including
a nonprofit corporation;

(B) a partnership;

(C) a professional association;

(D) a labor organization; and

(E) a business entity similar to an entity
described in any of subparagraphs (A) through (D);

(2) an entity carrying
out an education referral program, a training program, such as an
apprenticeship or management training program, or a similar program; and

(3) an entity carrying
out a joint program, formed by a combination of any entities described in
paragraph (1) or (2).

Section 709 of the
Civil Rights Act of 1964 (42 U.S.C.
2000e–8) is amended by adding at the end the following:

“(f)(1) Not later than 18 months
after the date of enactment of this subsection, the Commission
shall—

“(A) complete a survey of the data that is
currently available to the Federal Government relating to employee
pay
information for use in the enforcement of Federal laws prohibiting
pay
discrimination and, in consultation with other relevant Federal
agencies,
identify additional data collections that will enhance the
enforcement of such
laws; and

“(B) based on the results of the survey and
consultations under subparagraph (A), issue regulations to provide
for the
collection of pay information data from employers as described by
the sex,
race, and national origin of employees.

“(2) In implementing paragraph (1), the
Commission shall have as its primary consideration the most
effective and
efficient means for enhancing the enforcement of Federal laws
prohibiting pay
discrimination. For this purpose, the Commission shall consider
factors
including the imposition of burdens on employers, the frequency of
required
reports (including which employers should be required to prepare
reports),
appropriate protections for maintaining data confidentiality, and
the most
effective format for the data collection
reports.”.

(1)(A) shall use the full range
of investigatory tools at the Office's disposal, including pay grade
methodology;

(B) in considering evidence of possible
compensation discrimination—

(i) shall not limit its consideration
to a small number of types of evidence; and

(ii) shall not limit its evaluation of
the evidence to a small number of methods of evaluating the evidence;
and

(C) shall not require a multiple
regression analysis or anecdotal evidence for a compensation
discrimination
case;

(2) for purposes of
its investigative, compliance, and enforcement activities, shall define
“similarly situated employees” in a way that is consistent with and
not more stringent than the definition provided in item 1 of subsection A
of
section 10–III of the Equal Employment Opportunity Commission Compliance
Manual
(2000), and shall consider only factors that the Office's investigation
reveals
were used in making compensation decisions; and

(3) shall reinstate the Equal Opportunity
Survey, as required by section 60–2.18 of title 41, Code of Federal
Regulations
(as in effect on September 7, 2006), designating not less than half of all
nonconstruction contractor establishments each year to prepare and file
such
survey, and shall review and utilize the responses to such survey to
identify
contractor establishments for further evaluation and for other enforcement
purposes as appropriate.

(c) Department of
Labor distribution of wage discrimination information.—The
Secretary of Labor shall make readily available (in print, on the
Department of
Labor website, and through any other forum that the Department may use to
distribute compensation discrimination information), accurate information
on
compensation discrimination, including statistics, explanations of
employee
rights, historical analyses of such discrimination, instructions for
employers
on compliance, and any other information that will assist the public in
understanding and addressing such discrimination.

SEC. 10. Authorization of
appropriations.

(a) Authorization of
Appropriations.—There are
authorized to be appropriated $15,000,000 to carry out this Act.

(b) Prohibition on
Earmarks.—None of the funds
appropriated pursuant to subsection (a) for purposes of the grant program
in
section 5 of this Act may be used for a congressional earmark as defined
in
clause 9(d) of rule XXI of the Rules of the House of Representatives.

SEC. 11.Small Business
Assistance.

(a) Effective
date.—This Act and the
amendments made by this Act shall take effect on the date that is 6 months
after the date of enactment of this Act.

(b) Technical
assistance materials.—The Secretary of Labor and the Commissioner
of the Equal Employment Opportunity Commission shall jointly develop
technical
assistance material to assist small businesses in complying with the
requirements of this Act and the amendments made by this Act.

(c) Small
Businesses.—A small business shall be exempt from the provisions
of this Act to the same extent that such business is exempt from the
requirements of the Fair Labor Standards Act pursuant to section
3(s)(1)(A) (i)
and (ii) of such Act.

SEC. 12.Rule of
Construction.

Nothing in this
Act, or in any amendments made by this Act, shall affect the obligation of
employers and employees to fully comply with all applicable immigration
laws,
including any penalties, fines, or other sanctions.

Calendar No. 345

113th CONGRESS 2d Session

S. 2199

A BILL

To amend the Fair Labor Standards Act of 1938 to provide
more effective remedies to victims of discrimination in the payment of wages on
the basis of sex, and for other purposes.